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Loyam v Independent State of Papua New Guinea [2004] PGNC 36; N2741 (25 November 2004)

N2741

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

WS 1030 OF 2000

BETWEEN:

DAVID LOYAM
(Plaintiff)
&
ROSE LOYAM
(Second Plaintiff)

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(First Defendant)
&
THE DEPARTMENT OF POLICE
(Second Defendant)
&
CONSTABLE NAROL
(Third Defendant)
&
CONSTABLE TOROT
(Fourth Defendant)

MADANG : SAWONG, J.
2004 : 24th & 25th NOVEMBER

PRACTICE & PROCEDURE – Claim for damages - Notice of Intention to make a claim against the State under s.5 of Claims By and Against the State Act – No Notice given – Proceedings Dismissed.

HELD:

(1) The giving of Notice of Intention to make a claim is a condition precedent to filing proceedings.
(2) The failure to give such a Notice will result in the proceedings being dismissed.

CASES CITED:

Minato v Philip Kumo & The State (WS 823 of 1997 (H) and 1768
Daniel Hewale v PNG Police Force & The State (2002) N2233
John Bokin v The State (2001) N2111
Olympic Stationery Limited v The State (2001) N2194
Paul & Mary Bal v Kenny Taiba (2003) N2481
Paul Tohian, Minister for Police & The State -v- Tau Liu (Supreme Court Judgment) SC566

COUNSEL:

L. VAVA, for the Defendants/Applicants
NO APPEARANCE, of Plaintiffs

DECISION

25th November, 2004

SAWONG, J: By a Notice of Motion filed on the 27th of September, 2004 the defendants sought to dismiss the entire proceedings on the basis that:

1. The plaintiff had not complied with the s.5 of the Claims by and Against the State Act, of 1996;
2. In the alternative for want of prosecution pursuant to O.4 r.36 of the National Court Rules;
3. Or in the alternative for disclosing no reasonable cause of action pursuant to O.12 r.40 of the National Court Rules.
   

The Motion was initially not heard because the applicants’ lawyers were having difficulty in locating and serving the Notice of Motion and supporting affidavits on the plaintiffs. However, subsequently an application was made for substituted service. On 5th of November, 2004 the Court granted an order for substituted service. An affidavit of substituted service has now been filed which show that the Notice of Motion was published in the National Newspaper.

There was no appearance by the plaintiffs in respond to that substituted service at the hearing of the Motion. Mr Vava was therefore granted leave to prose cede ex parte.

The brief circumstances are that the plaintiff was alleged to have been injured by gunshot wounds on his leg on the morning of the 22nd of October, 2000 by several policemen, who are the primary defendants. The plaintiffs’ claim is therefore for general damages, exemplary damages for pain and suffering.

The present application is supported by the affidavit of substitute service sworn and filed on the 19th November 2004, the affidavit of the acting Solicitor General, Francis Kuvi filed on the 27th of September 2004, the affidavit of TauTau sworn on the 17th of September 2004 and filed on the 27th of September 2004 and the affidavit of Luke Vava sworn on the 27th of September 2004 and filed 29th September, 2004. Mr Kuvi and Mr TauTau both depose that they had conducted physical and electronic search of their files and note that the plaintiffs had not given their Notices of Intention to make a Claim before filing the proceedings.

Mr Vava submitted that, it is now settled law that a claimant wishing to file any proceedings in Court against the State must comply with the mandatory condition precedent required by s.5 of the Claim by and Against the State Act. Section 5 requires that a Notice of Intention to make a Claim against the State must be given to the State within six (6) months from the date of occurrence of the incident or from such other period as given by the Court or by the Principal Legal Advisor of the State. He relied on the Supreme Court decision in Paul Tohian & The State v Tau Liu (Unreported Judgment of the Supreme Court) SC566. The Court said at p.2:

"... The purpose of the requirement to give notice remains the same whether or not the notice is required to be given within six (6) or within such period as may be granted by the Principal Legal Advisor or the Court. It is clear to us that the Notice of Intention to make a Claim is a condition precedent to issuing a Writ of Summons in all circumstances."

From all these authorities, it is abundantly clear that the giving of Notice of Intention to make a Claim within the stipulated time frame is a condition precedent to filing a claim against the State. The failure to comply with this condition precedent will be fatal to any proceedings filed against the State.

In the present case, the uncontested evidence from Mr Kuvi and Mr TauTau is that, no such notice of intention to make a claim had been given by the plaintiff before filing the present proceedings. The plaintiff has offered no evidence contradicting this evidence. I therefore conclude that the plaintiff had not complied with the mandatory requirements of s.5 of the Act. In other words, the plaintiff has not complied with the condition precedent to filing of the present proceedings. That being the case, I am of the view that the proceedings are incompetent and must therefore necessarily be dismissed.

In view of my conclusion, I do not consider it necessary to consider the other alternative orders sought in the Notice of Motion. My formal orders are:

1. The entire proceedings be dismissed; and
2. That each party to pay their own costs.
   

____________________________________________________________________
LAWYERS FOR DEFENDANTS/APPLICANTS: PARAKA LAWYERS
NO APPEARANCE OF PLAINTIFFS